Silverio Silva v. State

Opinion issued May 3, 2012. In The Court of Appeals For The First District of Texas ———————————— NO. 01-10-00245-CR ——————————— Silverio Silva, Appellant V. The State of Texas, Appellee On Appeal from the 184th District Court Harris County, Texas Trial Court Case No. 1153744 MEMORANDUM OPINION A jury convicted Silverio Silva of possession with intent to deliver a controlled substance, namely, cocaine weighing in excess of 400 grams, a first‑degree felony. Tex. Health & Safety Code Ann. § 481.112(a), (f) (West 2010). The trial court assessed punishment at forty years’ confinement and a $10,000 fine. On appeal, Silva contends that the trial court erred in: (1) entering judgment on the jury’s verdict because no evidence corroborates an accomplice‑witness’s testimony implicating Silva; (2) improperly commenting on the weight of evidence during voir dire in a way that lessened the State’s burden of proof; (3) failing to excuse a jury panel member, who was later seated on the jury, for cause; (4) denying Silva’s motion to suppress; (5) including both the law of parties and the accomplice-witness rule in the charge; and (6) overruling Silva’s objection to the prosecutor’s improper comment during closing argument. We hold that the evidence contains sufficient independent corroboration of the testimony of Carlos Bernal, the accomplice-witness; Silva waived any complaints concerning voir dire and jury selection; the trial court did not abuse its discretion in denying Silva’s motion to suppress; any error in the jury charge did not cause egregious harm; and the trial court did not abuse its discretion in overruling Silva’s objection to the prosecutor’s closing argument. We therefore affirm. Background In February 2008, the Houston Police Department received a tip that narcotics were being moved to or stored at a Harris County business that operated a body shop and sold used cars. Officer C. Cantu, who worked with the narcotics division, called a fellow narcotics officer, M. Valles, and asked him to conduct surveillance of the business. Using an unmarked vehicle, Officer Valles situated himself across the street from the business. Bernal’s testimony against Silva at trial explains the events that occurred just before Officer Valles began the surveillance. Bernal recounted that Silva picked him up at work and drove him in a white Ford Taurus to the used car lot. Silva gave Bernal the keys to the Taurus and assisted him in transferring the bricks of cocaine from another car into the Taurus. After completing the transfer, they parked the Taurus and waited to receive a telephone call with information about where to transport the drugs. Officer Valles, using binoculars, noticed employees walking between the office and the repair bays. These employees were completing body work, painting and cleaning cars. In another area, he saw two individuals—later identified as Silva and Bernal. Silva and Bernal were not involved in any of the employee activities or interacting with the other employees. Instead, they were walking back and forth, talking on their cellphones and, occasionally, to each other. Near them, Officer Valles noticed a car that had a cover over it. He observed that none of the workers approached Silva, Bernal, or the covered car. Officer Valles continued to watch Silva and Bernal, who eventually walked off. Silva and Bernal returned a short while later, approached the car and pulled the cover off, revealing the Taurus. They threw the car cover into the trunk and drove off the lot toward the Gulf Freeway. As they passed his surveillance location, Officer Valles saw that neither Bernal, who was driving, nor Silva, who was riding in the front seat, was wearing a seat belt. He pulled out behind them and began following the Taurus. Bernal failed to turn on the directional signal as he turned onto the freeway ramp, then, once on the freeway, changed lanes four or five times without signaling. Once Officer Valles determined that the Taurus would continue heading south, he called HPD dispatch and asked for a marked unit to conduct a traffic stop on the Taurus. Patrol Officers H. Trent and R. Moss responded to the call. The patrol unit trailed behind Officer Valles’ car as Officer Valles followed the Taurus, eventually exiting the freeway at Almeda-Genoa. As the Taurus headed into the left lane to turn at the light, the patrol unit drove around Officer Valles’ car, got behind the Taurus, and performed the traffic stop. Stopping his car a block behind, Officer Valles communicated with the patrol officers by radio to explain the circumstances leading to the stop. The patrol officers secured Silva and Bernal in the back seat of the patrol car. One officer then drove the patrol car to a nearby gas station away from the traffic while the other officer followed in the Taurus. The officers asked Bernal for permission to search the car, and he gave it to them. After looking over the Taurus, the patrol officers called Officer Valles to the scene. They showed Officer Valles that the backseat was wedged tightly in the car and appeared to have been altered by attaching a hydraulic mechanism. Using a flashlight, Valles peered into the bottom left corner of the seat back and saw a few gray, brick-shaped packages. Officer Valles’s experience told him that criminals commonly used this type of packaging to transport cocaine. The trunk contained a speaker box with a false plywood wall behind it. Officer Valles pulled off the false wall and revealed additional, similarly wrapped packages. He then contacted Officer Cantu to inform him of the find. Officer Cantu arrived a short while later and, after Officer Valles briefed him, took over the investigation. Officer Cantu and his squad removed a total of twenty-nine one-kilogram packages of a powder that later testing confirmed was cocaine, with a street value of approximately $2.9 million. Meanwhile, both Silva and Bernal appeared upset and extremely nervous in reaction to the discovery. They kept their heads down and, despite the cold February weather, were sweating profusely. They swallowed constantly and had dry mouths and lips. They had difficulty maintaining eye contact and stuttered while answering the officers’ questions. When Officer Valles asked Silva why he was in the car, Silva responded that Bernal was giving him a ride, but could not explain where they were going or where they had come from. Silva’s evasiveness and the fact that his answers were not consistent with Bernal’s responses led Valles to conclude that Silva was lying. Officer Valles also noted that Silva did not get angry or confront Bernal when the officers found the cocaine, a reaction that he would have expected if Silva had not already known about its presence in the car. Further, cocaine has a unique smell which, Officer Valles opined, persons traveling in the vehicle would have noticed. Later in their investigation, the officers discovered that the Ford Taurus was not registered to either Bernal or Silva. The registration named Roberto Martinez as the car’s owner, but listed the home address of the used-car lot’s owner, Victor de la Fuentes. Approximately two months after Silva’s arrest, de la Fuentes was arrested after he delivered several kilos of cocaine to an undercover officer. Discussion I. Evidentiary Sufficiency Under the Accomplice Witness Rule Silva first contends that other evidence did not sufficiently corroborate Bernal’s testimony against him to sustain his conviction under the accomplice‑witness rule. Under article 38.14 of the Texas Code of Criminal Procedure, “A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.” Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005). “The test for sufficient corroboration is to eliminate from consideration the accomplice testimony and then examine the other inculpatory evidence to ascertain whether the remaining evidence tends to connect the defendant with the offense.” McDuff v. State, 939 S.W.3d 607, 612 (Tex. Crim. App. 1997) (citing Burks v. State, 876 S.W.2d 877, 887 (Tex. Crim. App. 1994)); Rios v. State, 263 S.W.3d 1, 7 (Tex. App.—Houston [1st Dist.] 2005, pet. dism’d). In conducting this sufficiency analysis, we disregard all accomplice evidence and determine whether the other inculpatory facts and circumstances in evidence tend to connect appellant to the offense. Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993). The evidence is sufficient if some non-accomplice evidence tends to connect appellant to the commission of the offense alleged in the indictment; it need not, by itself, directly link the defendant to the crime or prove his guilt beyond a reasonable doubt. McDuff, 939 S.W.3d at 613; Hernandez v. State, 939 S.W.3d 173, 176 (Tex. Crim. App. 1997); see also Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008) (explaining that circumstances that are “apparently insignificant may constitute sufficient evidence of corroboration”); Vasquez v. State, 56 S.W.3d 46, 48 (Tex. Crim. App. 2001) (noting that rule requires “some non-accomplice evidence tending to connect the defendant to the crime, not to every element of the crime”). 1. Possession with intent to deliver A person commits the offense of possession with intent to deliver a controlled substance if he knowingly possesses with intent to deliver a controlled substance listed in Penalty Group one, which includes cocaine. See Tex. Health & Safety Code Ann. §§ 481.112(a), (f), 481.102(D) (West 2010) (listing cocaine in Penalty Group 1). In a possession-with-intent-to-deliver case, the State must prove that the defendant (1) exercised care, custody, control, or management over the controlled substance; (2) intended to deliver the controlled substance to another; and (3) knew that the substance in his possession was a controlled substance. Id. §§ 481.002(38), 481.112(a); Pena v. State, 251 S.W.3d 601, 606 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). Possession is voluntary “if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control.” Tex. Penal Code Ann. § 6.01(b) (West 2011). “‘Deliver’ means to transfer, actually or constructively, to another a controlled substance . . ., regardless of whether there is an agency relationship. The term includes offering to sell a controlled substance. . . .” Tex. Health & Safety Code Ann. § 481.002(8). These elements may be established by either direct or circumstantial evidence. Poindexter v. State, 153 S.W.3d 402, 405–06 (Tex. Crim. App. 2005) (quoting Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995)). When a defendant is not in exclusive possession of the place where the controlled substance is found, the State must prove additional, independent facts and circumstances that affirmatively link the defendant to the contraband in such a way that it can be concluded that the defendant had knowledge of the contraband and exercised control over it. Roberson v. State, 80 S.W.3d 730, 735 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). An affirmative link generates a reasonable inference that the defendant knew of the contraband’s existence and exercised control over it. Johnson v. State, 658 S.W.2d 623, 627 (Tex. Crim. App. 1983), overruled on other grounds by Woods v. State, 956 S.W.2d 33, 36 n.3, 39 (Tex. Crim. App. 1997); Roberson, 80 S.W.3d at 735. Courts have identified a non‑exhaustive list of factors that may help to show an affirmative link to controlled substances, including: (1) the accused’s presence when a search is conducted, (2) whether the contraband was in plain view, (3) the accused’s proximity to and accessibility of the contraband, (4) whether the accused was under the influence of narcotics when arrested, (5) whether other contraband or narcotics were found in the accused’s possession, (6) any incriminating statements the accused made when arrested, (7) whether the accused made furtive gestures or attempted to flee, (8) any odor of contraband, (9) the presence of other contraband or paraphernalia, (10) the accused’s ownership or right to possess the place where the contraband was found, (11) whether the place where the drugs were found was enclosed, (12) whether the defendant was found with a large amount of cash, and (13) whether the conduct of the accused indicated consciousness of guilt. See Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 1996); Roberson, 80 S.W.3d at 735 n.2. The number of links present is not as important as the logical force of any of the links to prove the accused knowingly possessed the contraband. Roberson, 80 S.W.3d at 735. As in a typical evidentiary sufficiency analysis, consideration of these factors aids in determining whether, apart from accomplice testimony, satisfactory corroborative evidence tends to connect appellant to the offense. Applying the factors, we conclude that Officer Valles’s testimony independently links Silva with the thirty-nine kilograms of cocaine found in the Taurus. First, Officer Valles observed that Silva and Bernal appeared to act in tandem. Both intermittently spoke on their cellphones and then with each other, and neither had any contact with the workers on site. They left the lot together, returned together, and pulled the cover from the car. “Evidence that the defendant was in the company of the accomplice at or near the time or place of the offense is proper corroborating evidence.” McDuff, 939 S.W.3d at 613. Second, Officer Valles testified that when the police found the cocaine secreted behind the false wall, Silva, despite the cold weather, was sweating profusely and avoided eye contact with Valles while answering questions. Silva’s mouth was so dry he had difficulty speaking, and his story about getting a ride from Bernal was patently unconvincing. Officer Valles confirmed that Silva’s behavior indicated consciousness of guilt. Third, Officer Valles testified that the large amount of cocaine in the closed car would have had a discernible odor. We hold that the record satisfies article 38.14’s requirement that evidence independent of the accomplice witness’s testimony connect the defendant with the offense committed. II. Court Statements During Voir Dire Silva contends that the trial court’s comments amount to fundamental error because they diminished the State’s burden of proof. He complains that the trial court erred in: · reading the indictment to the venire without explaining that it was not evidence of guilt; · referring to the first phase of trial as the “guilt phase,” rather than the “guilt-innocence phase”; and · referring to Bernal, the accomplice-witness, as a witness who may be proved guilty of the crime. Silva did not object in the trial court to the comments he complains of on appeal. See Tex. R. App. P. 33.1(a). As a general rule, trial counsel must object to preserve error, even if it is “incurable” or “constitutional.” See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). In seeking review here, Silva relies on the plurality in Blue v. State, which found fundamental error of constitutional dimension and reversed without requiring an objection where the trial judge had expressed his personal view regarding appellant’s guilt and decision to go to trial. 41 S.W.3d 129, 132–33 (Tex. Crim. App. 2000). There, the trial judge informed the venire that he would have preferred that the defendant accept the State’s plea bargain and plead guilty, and that defense attorneys routinely suborn perjury. Id. at 130–32. In this case, the trial judge made clear that the State had the burden to prove each allegation in the indictment, saying: Of course, the State has to prove this occurred in Harris County, Texas. . . . Then they have to prove that Mr. Silva is the right person; that is, that he is the person who had the drugs, there is not some mistaken identity or something like that. . . . And the reason that that’s in there is to avoid the conviction or prosecution of innocent people.” This explanation communicated to the jury that the indictment itself was not evidence, but stated “the main issues . . . the State has to prove,” and it did not relieve the State of its burden of proof. The trial court also pointed out that Silva was entitled to the presumption of innocence. None of the trial court’s comments rose to such a level as to bear on the presumption of innocence or vitiate the impartiality of the jury. See Jasper v. State, 61 S.W.3d 413, 420–22 (Tex. Crim. App. 2001). We therefore hold that Silva waived these complaints by failing to object to the trial court’s comments. III. Failure to Excuse Prospective Jurors for Cause Silva next complains that the trial court erred in failing to grant his request to call prospective juror number 23 to the bench for further questioning after that juror had indicated a bias in favor of law enforcement. Silva contends that further questioning would have allowed him to strike juror number 23 for cause instead of using a peremptory strike to prevent him from being seated on the jury. Silva also complains of the trial court’s denial of his challenge to seating prospective juror number 40 on the jury. “A challenge for cause is an objection made to a particular juror, alleging some fact which renders the juror incapable or unfit to serve on the jury.” Tex. Code Crim. Proc. Ann. art. 35.16(a) (West 2006). Before we may address the trial court’s voir dire rulings, however, the record must show that the appellant preserved the objection for appellate review. See Tex. R. App. P. 33.1. Article 35.16 of the Code of Criminal Procedure lists the specific grounds on which a potential juror may be challenged for cause. Tex. Code Crim. Proc. Ann. art. 35.16(c)(2). When a prospective juror is subject to challenge under article 35.16, the failure to timely assert that challenge waives the complaint on appeal. Jackson v. State, 548 S.W.2d 685, 697 (Tex. Crim. App. 1977). To preserve the challenge for appellate review, an appellant must: (1) assert a clear and specific challenge for cause; (2) use a peremptory strike on the prospective juror; (3) exhaust his peremptory strikes; (4) request additional peremptory strikes; (5) identify an objectionable juror; and (6) claim that he would have struck the objectionable juror with a peremptory strike if he had had a strike to use. Allen v. State, 108 S.W.3d 281, 282 (Tex. Crim. App. 2003); Fulenwider v. State, 176 S.W.3d 290, 300 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d). Silva did not articulate any specific ground for his challenges to either prospective juror number 23, on whom he exercised a peremptory strike, or prospective juror 40. Silva therefore failed to preserve these complaints for appeal. See Jackson, 548 S.W.2d at 697. IV. Denial of motion to suppress Silva contends that the trial court erred in denying his motion to suppress the evidence seized from the car because the State failed to prove that an exception to the warrant requirement authorized the search and seizure—namely, that either Silva or Bernal voluntarily consented to the search. See Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002) (“Consent to search is one of the well‑established exceptions to the constitutional requirements of both probable cause and a warrant.”). We review the trial court’s ruling on a motion to suppress for abuse of discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). We view the evidence in the light most favorable to the trial court’s ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007) (quoting State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006)). The trial judge is the “sole trier of fact and judge of credibility of the witnesses and the weight to be given to their testimony.” St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). The trial court may choose to believe or disbelieve any part or all of a witness’s testimony. Green v. State, 934 S.W.2d 92, 98 (Tex. Crim. App. 1996) (citing Allridge v. State, 850 S.W.2d 471, 492 (Tex. Crim. App. 1991)). We defer to a trial court’s express or implied determination of historical facts, as well as to its application of law to fact questions if those questions turn on the evaluation of a witness’s credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We sustain the trial court’s ruling if it is reasonably supported by the record and correct on any theory of law applicable to the case. Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003) (citing Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002)). Bernal’s testimony supports the trial court’s ruling. When asked if he recalled the officers asking for his consent to search the Taurus, he responded: A. If they asked permission, yes. Q. And you said you would let them; is that right? A. Yes. Silva contends that that Bernal’s inability to speak English makes it doubtful that he voluntarily consented to the search. But, although Bernal had the assistance of an interpreter at trial, he also explained that he spoke some English, and did not testify to any uncertainty concerning the content of the officer’s request or the voluntariness of his consent. Further, Officer Moss testified that his partner asked the Taurus’s driver (Bernal) in Spanish whether he consented to a search of the car, and Bernal did so. Because the record reasonably supports the trial court’s ruling on this ground, we need not consider whether it also upholds the ruling under the State’s alternative grounds—the inventory search exception—or whether, as the State further contends, Silva lacks standing to complain of the search. We hold that the trial court did not abuse its discretion in denying Silva’s motion to suppress. V. Jury Instructions on Accomplice-Witness Rule and Law of Parties Silva contends that the trial court erred by improperly instructing the jury on the accomplice-witness rule and also on the law of parties, which combined to form a repetitive instruction. We review a claim of jury-charge error using the procedure set out in Almanza v. State. 686 S.W.2d 157 (Tex. Crim. App. 1985). First, we determine whether there is error in the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003)). If error exists and the appellant objected to the error at trial, reversal is required if the error “is calculated to injure the rights of the defendant,” in other words, if there is “some harm.” Almanza, 686 S.W.2d at 171. If the error was not objected to, it must be “fundamental” and will require reversal only if it was so egregious and created such harm that the defendant “has not had a fair and impartial trial.” Id.; Saunders v. State, 817 S.W.2d 688, 690 (Tex. Crim. App. 1991). Under both standards, we look to the actual degree of harm in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171. Silva did not object to the charge, which instructed the jury as follows: An accomplice, as that term is here used, means anyone connected with the crime charged, as a party thereto, and includes all persons who are connected with the crime by unlawful act or omission on their part transpiring either before or during the time of the commission of the offense, and whether or not they were present and participated in the commission of the crime. A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible or by both. Mere presence alone, however, will not constitute one as a party to an offense. A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. The term “conduct” means any act or omission and its accompanying mental state. You are instructed that a conviction cannot be had upon the testimony of an accomplice unless the accomplice’s testimony is corroborated by other evidence tending to connect the defendant with the offense charged, and the corroboration is not sufficient if it merely shows the commission of the offense, but it must tend to connect the defendant with its commission. The witness, Jose Bernal, is an accomplice, if an offense was committed, and you cannot convict the defendant upon his testimony unless you further believe that there is other evidence in the case, outside of the testimony of Jose Bernal tending to connect the defendant with the offense committed, if you find that an offense was committed, and the corroboration is not sufficient if it merely shows the commission of the offense, but it must tend to connect the defendant with its commission, and then from all of the evidence you must believe beyond a reasonable doubt that the defendant is guilty of the offense charged against him. Silva does not claim any substantive error either in the abstract definitions or in the application paragraph of the charge. The application paragraph of a jury charge is the part that authorizes conviction. McFarland v. State, 928 S.W.2d 482, 515 (Tex. Crim. App. 1996), overruled on other grounds by Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998). When the application paragraph correctly instructs the jury, a superfluous abstract definition is not harmful. Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999) (citing Plata v. State, 926 S.W.2d 300, 302–03 (Tex. Crim. App. 1996)); Grady v. State, 614 S.W.2d 830, 831 (Tex. Crim. App. 1981)). We therefore hold that any charge error resulting from either any repetitious language in the order of the abstract definitions did not cause egregious harm. VI. Improper Closing Argument Lastly, Silva contends that the trial court erred in overruling his objection to the prosecutor’s argument because it violated his constitutional right to remain silent. The prosecutor told the jury: When you go back there, you’re going to have the charge; and you’re going to do what your common sense tells you to do. And I’m going to ask you to find the defendant guilty and I’m going to ask you to find him guilty because he is guilty and you know that he is guilty. You know from all the testimony, you know from all of the things you heard; you know from his own behavior at that scene when he is profusely sweating. He is acting, as the officer described, more nervous than someone that is just there for a normal traffic stop. And how did he react when the officers found those drugs[?] You heard the officer testify. He hung his head just like Jose Bernal did. You know that if he was not guilty, if he didn’t know those drugs were in that car, he would have been screaming— The law is well settled that a prosecutor’s comment to the jury on an accused’s failure to testify violates the state and federal constitutional privileges against self-incrimination. Bird v. State, 527 S.W.2d 891, 893–94 (Tex. Crim. App. 1975). A prosecutor’s comment amounts to an impermissible comment on a defendant’s failure to testify only if, when viewed from the jury’s standpoint, the comment is manifestly intended to be, or is of such character that a typical jury would naturally and necessarily take it to be, a comment on the defendant’s failure to testify. Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007); Weed v. State, 129 S.W.3d 126, 130 (Tex. Crim. App. 2004); Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001). In the salient portion of the prosecutor’s closing argument, the prosecutor referred to Officer Valles’s testimony that he would have expected Silva to scream or otherwise express anger and surprise toward Bernal if he was unaware of the stash. This reference does not relate to Silva’s failure to say anything in particular; rather, it highlights his reaction to the cocaine’s discovery. See Evans, 202 S.W.3d at 162 n.12 (observing that conduct of accused indicating consciousness of guilt is relevant evidence linking defendant to charged offense). Thus, we hold that the trial court did not abuse its discretion in overruling Silva’s objection to the prosecutor’s argument. Conclusion We affirm the judgment of the trial court. Jane Bland Justice Panel consists of Justices Keyes, Bland, and Sharp. Do not publish. Tex. R. App. P. 47.2(b).